In re O'Brien , 29 Mont. 530 ( 1904 )

MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

On the 1st day of December, 1903, an election was held in Ravalli county, Montana, pusuant to the provisions of Chapter X, Title VII, Part III, Secs: 3180-3188, of the Political Code, at which election a majority of all the votes cast were for “Sale of Intoxicating Liquors: No,” and thereafter the returns of the election were duly canvassed, and the result published, as required by law. The provisions of said chapter thereupon became operative in that county on the 7th day of January, 1904.

Within the confines of Ravalli county is the town of Hamilton, incorporated under the general incorporation Act pf Montana. Pursuant to that Act the town council had enacted an ordinance regulating and licensing the saloon or retail liquor business, and had regularly issued to this complainant a license to conduct such saloon business in that town. On January 7, 1904, after tbe local option law is claimed to have become operative in Ravalli county, tbe complainant was arrested and tried for and convicted of selling intoxicating liquors in violation of tbat law, and sentenced to pay a fine of $100, and in default, of payment was confined in tbe county jail. He thereupon applied to tbis court for a writ of habeas corpus, wbicb was issued. TJpon tbe petition and tbe return of tbe sheriff thereto tbe cause was submitted for decision to this court, it being conceded tbat no questions of fact were raised by the return of tbe sheriff.

Only two questions were argued and submitted for determination, and we have carefully confined our decision to< them.

In order tbat no broader application may be made of tbe language herein used than, is intended, tbe following is quoted from complainant’s brief as showing tbe scope of this inquiry: “It will be conceded here tbat the proceedings of tbe trial and conviction were regular, and that, if tbe said so-called local option law is valid and constitutional, and has operative force in tbe territorial limits of tbe town of Hamilton, then tbis petition and writ should be dismissed. Hirst. We take the position, as ■*ve have indicated, tbat the law is invalid, unconstitutional and void. Second. Tbat tbe law, even if valid, has no operative force within tbe corporate limits of tbe town-of Hamilton, and there can be no' violation of it within tbat territory. Tbat the law is unconstitutional upon tbe several grounds and for tbe reasons following: (a) Tbat it is a delegation of legislative' power, (b) Tbat it delegates to tbe people tbe legislative function of determining the expediency of tbe law. (c) That it is local and special legislation, (d) That it is not complete in all its terms and provisions, (e) That it undertakes to absolutely prohibit the sale of spirituous, vinous, malt and intoxicating liquors, making no exceptions for medical or sacramental purposes, or for physicians, or for lawful interstate commerce.”

1. Is the law unconstitutional?

Tbe same objections which are urged against tbe constitutionality of tbis Act have been frequently lodged against so-called local option laws, and, while in comparatively few instances such laws have been held unconstitutional, the very great weight of authority and nearly all the later decisions have upheld them.

(a, b) The most frequent objection made is that such laws are an unwarranted delegation of legislative power to the people. Under our system of government the lawmaking authority is vested in the legislative assembly, and can be exercised by no one else. The legal effect of the popular vote, however, is not infrequently misconceived. If the law is complete in all its parts, it is an expression of the legislative will none the less that the contingency upon which it takes effect in any particular locality is made to' depend upon a favorable vote of the people of that locality.

The Act under consideration was passed by the legislature, received the governor’s approval, and became law of state-wide application on July 1, 1895. A vote of the people of Kavalli county adds nothing whatever to the efficacy of the law, but merely furnishes the occasion for the exercise of the power inherent in the law. The law remains intact, and is a valid enactment on the statute books, whether a vote be taken upon it in any county, or whether any vote so taken results favorably or unfavorably to calling into' operation its provisions. .

While the legislature may not delegate to the people the authority to malee the law, or to say what kind of a restrictive measure shall be adopted, or propose a law and submit it to a vote of the people to say whether1 or not it shall in fact be enacted into law, it may pass an Act which takes effect only upon the happening of a contingency — a favorable vote of the people.

With equal propriety could it be said that the general incorporation Act under which the town of Hamilton assumes to license and regulate the saloon business within its corporate limits is unconstitutional for the same reason, for that Act is purely a local option law, which is to be put into operation in the same manner as the law in question. In fact, this same objection was nrgecl against the Act of tlie territorial legislature incorporating the city of Butte; but this court disposed of the •question adversely to the contention of the relator, and, after citing numerous authorities in support- of its position, among other things said: “These cases have been cited to show, first, that it is within the competency of legislative authority to enact laws the taking effect of which may be conditional or contingent, depending upon some uncertain future event; and, ■second, that it is competent for a legislature to delegate to one man, or to a certain designated body or class of men, or to the whole people, the question as to' when the contingency or event has or shall take place. And such determination is not in any sense the making of the law'. Tt is declaring when a law already made shall go into effect.” (People ex rel. Boardman v. City of Butte, 4 Mont. 174, 1 Pac. 414, 47 Am. Rep. 346; Cooley’s Constitutional Limitations, 145; Black on Intoxicating Liquors, 45, and numerous cases cited.)

(c) Is the law local or special in the sense that it is prohibited by Section 26, Article Y, of the Constitution ?

Considering this" same question, the Supreme Court of Dakota, in Territory v. O’Connor, 5 Dak. 397, 41 N. W. 746, 3 L. R. A. 355, said: “That it is in conflict with the statute of the United States prohibiting special legislation (by the territorial legislature), or that it is a delegation of legislative power, might have been urged with some plausibility in the earlier days of American jurisprudence. It is now too late to argue the question as an original proposition. Matters affecting the police, such as the sale of intoxicating drinks, running at large of cattle, and kindred questions, are so differently regarded in different localities that it has been by ho means uncommon to submit them to the people of the locality to be affected by their exercise; and laws so submitting such questions have been almost uniformly sustained, though not always upon the same ground. Many of the authorities in a case like the one before us hold that the law was perfect in all its parts, and complete, so far as any further action of the legislature was concerned, when it was- approved by tbe executive; aud tbat its adoption or rejection by tbe voters, or rather tbe' favorable or unfavorable vote as to execution of tbe law, was a contingency merely provided for by tbe legislature as to tbe time when it should become operative.”

Tbe mere fact tbat tbe adoption of this law in Eavalli county, and its rejection or non acceptance in Missoula, county, for instance, will make tbat unlawful in tbe former which is lawful in tbe latter, does not render tbe Act void. Tbe error in tbe argument made in support of this contention lies in tbe assumption tbat tbe vote makes tbe law, and tbat what is a law in Ka-valli county is not a law in Missoula county. Tbe law is tile same for all, and equally available to all. (Territory v. O’Connor, supra; State v. Pond, 93 Mo. 606, 6 S. W. 469.)

Considering this objection to a like statutory enactment tbe Supreme Court of New Jersey in Paul v. Gloucester Gounty, 50 N. J. Law, 585, 15 Atl. 272, 1 L. R. A. 86, said: “Tbe inhibition in tbe constitution is not intended to secure uniformity in tbe exercise of delegated police powers, but to forbid tbe passing of a law vesting in one town or county a power of local government not granted to another. If one town or county was excepted from tbe operation of this law, it would be special and local. Under it one county or town has neither greater nor less power than every other, nor does such power differ in any respect. Tbe authority granted is in every aspect of it tbe same. It- may be exercised in a different way or tbe same way. * * * Tbe law, in my judgment, is unquestionably a gem eral law. Tbe quality of uniformity in result cannot coexist with tbe right of self-government in various sections of the state.”

In discussing a township, organization Act which, was purely a local option law, tbe Supreme Court of Missouri, in Opinion on Township Organization Law, 55 Mo. 295, said: “It is a general law, made for the. whole state, and by tbe terms of the Act itself took effect from and after its passage. Every county in tbe state may avail itself of tbe privileges offered by this law by a majority vote of its people. It is left to tbe option of’ the counties whether they will organize under the law or not. If a majority vote for it, such vote does not create the law, but places the county so voting within its provisions, and the organization then takes effect, and also- the law as it existed before-the vote was taken. The law does not delegate, nor was it the-intention of the lawmakers to delegate, legislative authority to the counties. Tinless the counties avail themselves of the right to Qrganize, they will remain as they were, unaffected by any of the provisions of this statute.”

(d) Is the law complete ?

The law provides, first, -for a petition to the board of county commissioners praying for an election; second, for the notice to be given of the impending election; third, for the particular-form of ballots, for their supply, and the method of marking them; fourth, for an election, and the canvassing of the returns according to the general election laws; fifth, for a notice of the-result of the election, and a definite date when the law shall become operative; and, finally, for a penalty for a violation of its provisions. The only question submitted to- the- people is: Shall intoxicating liquors be sold in this county, or in other words Shall the people of this county become1 subject to the operations of the local option law? And that question, we have already seen, may properly be submitted to a popular vote. The law is a-complete legislative enactment. It was passed with all due formality by the legislature and was approved by the governor. As was said of a like statute by the Supreme Court of Missouri in State v. Pond, supra: “The- law is complete and effective when it has passed through the forms prescribed for its- enactment, though it may not operate, or its influence may not be felt, until a subject has arisen upon which it can act. In the case we- are considering the Act took effect with the other laws-contained in the statutes. It was passed according to- the prescribed forms designated in the constitution. Its enactment did not depend upon any popular vote, but parties to be affected by it were at liberty to accept the privileges granted and incur the burdens and obligations it imposed, as their interests or will should dictate. If they elected not to avail themselves of its privileges, it did not in the least impair its force. It still stood a valid enactment on the statute book. If they organized under it, they were entitled to' the benefit of its provisions; but in ■either event the law remained the same.” (See, also, State v. Wilcox, 45 Mo. 458.)

(e) Because no- exception is made for liquors for medicinal ■or sacramental purposes, or for sales in original packages imported from, other states, this law, it is claimed, is unconstitutional and void. However, the complainant was not arrested for selling liquors for medicinal or sacramental purposes, or for •selling in original packages which had been imported from another state, and, while these subjects have received consideration ■at the hands of the courts, and a review of such adjudicated ■casés might be interesting, this court will not decide a moot ■case. The-complainant cannot urge these objections, and it will be time enough to consider them when they become directly involved. (State v. Pond, supra.)

2. Is the local option law operative within the incorporated town of Hamilton?

The local option law is a portion of Part III of the Political ■Code, while the general incorporation Act for cities and towns Is embraced in Part IV of the same Code. The portion relating to the legislative powers of cities and towns is found in Section 4800. Whether Section 4800, as amended by Act of 'the Fifth legislative assembly, approved March 8, 1897 (Sess. Laws 1897, p. 203), or the Act of the Third legislative assem-. bly, approved March 7, 1893 (Sess. Laws 1893, p. 113, retained by Section 5186, Political Code), be in force, is immaterial ■for the purposes of this case.

Counsel for complainant contend that under the provisions of Section 4800 the town of Hamilton has been granted power to license and regulate saloons within its corporate limits, and ■that, if the local option law be given force in that town, there Is a direct conflict in the laws, and therefore the canon of interpretation provided in the Political Code, Section* 5162, must-be applied, viz.: “If the provisions of any title conflict with, or contravene the provisions of another title, the provisions- of each title must prevail as to- all matters, and questions arising out of the subject-matter of such title.”

The general license law of this state is found in Part III of the Political Code along with the local option law, and if the contention of complainant is correct, then no license can be-exacted from residents of the town of Hamilton under the general license law; in other words, the license exacted by the town of Hamilton would be exclusive. But no one would seriously contend that in granting power to incorporated towns to license- and regulate the liquor traffic the state had surrendered its power to license and regulate it also. (Corbett v. Territory, 1 Wash. T. 431.) The power conferred on incorporated towns by the general incorporation Act is but a mere grant of limited power to the municipality, which it holds subject to- the general laws of the state. “But municipal corporations are subordinate parts of the state and invested with limited powers. The legislature, in granting such powers, does not divest itself of any power over the inhabitants of the district which it possessed before the charter was granted.” (Wilcox v. Deer Lodge County, 2 Mont. 574.)

The general incorporation Act only authorizes the city council to- license and regulate the sale of intoxicating liquors where-it can be done without violating existing state laws. (Cooper v. Shelton, 97 Ky. 282, 30 S. W. 623; Tatum v. State, 19 Ga. 116, 3 S. E. 907.) In other words-, by Section 4800 the state-merely says- to- the municipality: “You may license such business so- long as that business may be lawfully carried on under the general laws of the state, and no longer.” This intent on the part of the legislature is made manifest by Subdivision 3 of Section 4800, which reads- as follows: “The city or town-council has power: * * * (3) To license all industries,, pursuits, professions and occupations for which under the state law, a license is required, but the amount to be paid for such, license must not exceed the sum required by the state law.”

With the local option law in operation in Ravalli county, there is no one there who can lawfully sell intoxicating liquors, and therefore there is no one whom the city of Hamilton can lawfully license to conduct such business. The limited grant ■of power to the town of Hamilton is merely held in abeyance •so long as the local option law' is in effect. (Robertson v. State, 5 Tex. App. 155; Butler v. State, 25 Fla. 347, 6 South. 67.)

The license granted to complainant is a mere permit, and he took it charged with the full knowledge that at any time the •state, in the exercise of its police power, might revoke it (McKinney v. Town of Salem, 77 Ind. 213), and that the adoption of the local option law in Ravalli county would have such •effect (State v. Cooke, 24 Minn. 247, 31 Am. Rep. 344). For the powers of the city council are subordinate to the general laws of the state (State v. Langston, 88 N. C. 692). Neither is the grant of the power by the legislature made to-, or directly for the benefit of, the individual, but it is made to the municipality as such, tO' enable it to properly conduct its corporate •affairs.

The cases cited by complainant from California are not in point. There the counties are more nearly municii>al corporations, and the boards of county commissioners are legislative "bodies to a limited extent, at least. In Ex parte Campbell, 74 Cal. 20, 15 Pac. 318, 5 Am. St. Rep. 418, it is said: “Section 25 of the county government Act [St. 1883, p. 303, c. 75] confers upon the boards of supervisors in their respective counties power to make and enforce ‘all such local, police, sanitary and other regulations as are not in conflict with general laws.’ 'There is nothing in the case before us to- show whether the board ■of supervisors of Los Angeles county have ever made any regulations with respect to the sale of wines or liquors in saloons and barrooms, but manifestly such regulations, if made, could not operate to^ divest the authorities of the city of the right to legislate upon the same subject, and enforce such regulations ■within the city limits. The regulations of the board of supervisors would not be a general law within the meaning of the provisions of Section 11, Article XI, of the Constitution.”

In tbis state the counties are at most only quasi municipal corporations, witb ím legislative authority vested in the several boards of county commissioners in the sense that they may adopt ordinances and prescribe penalties for a violation thereof, or define nuisances and provide for their abatement.

Complainant apparently assumes that by virtue of the vote favorable to the enforcement of the local option law in Ravalli county the law therefore became, in effect, an enactment or ordinance of that- county; but, as we have said before, the law was in existence as a state-wide measure before the vote was taken, and the only possible effect of the vote was: to put that' law into effect in that particular locality.

We agree with counsel for complainant when they say that ordinances passed by the town of Hamilton under the power granted to that town by the general incorporation Act cannot be controlled, suspended, altered or amended by the county, either by its board of county commissioners or by a vote of its inhabitants. But it is not the county government of Ravalli county which is seeking to prohibit the sale of intoxicating liquors, but the state itself. The county is not depriving the town of Hamilton of the revenue which it formerly had from, saloon licenses, but the state is doing so- by operation of a general law. The law is not an ordinance of tire county, and the vote of the people had nothing to- do with its enactment. If the law had not. already been on the statute books, the people of Ravalli county would have been helpless in the matter, so far as controlling the liquor traffic by any vote which they may have cast. In State v. Pond, supra, it is said: “By its provisions the law, and not the vote, extended its influence over the locality voting against the sale of intoxicants. It was the law that authorized the vote to be taken, and, when taken, the law, and not the vote, declared the result that should follow the vote. The* vote was the means provided to ascertain the will of the people, not as to the passage of the law, hut whether intoxicating liquors should he. sold in their midst. If the majority voted against the sale, the law, and not the vote, declared it should not be sold. The vote sprang from tire law, and not tbe law from the vote. By their vote the electors declared no consequences, prescribed no penalties, and exercised no* legislative function. The law declared the consequences, and, whatever they may be, they are exclusively the result of the legislative will.”

In Ex parte Lynn, 19 Tex. App. 293, this, same question was before the court. Under the Texas local option law the people of Milam county had voted against the sale of intoxicating liquors. The petitioner, Lynn, was arrested for a violation, of the law, and defended upon the ground that he, resided in the city of Bockdale, an incorporated city within Milam 'county, which had issued to him a license to sell liquors, and that the charter of that city authorized it i» issue such license. The Court of Appeals, however, held the law operative throughout the county, and, among other things, said: “But, even viewing it as a general law, it was unquestionably the intent of the legislature that it should have the effect, whenever adopted in a particular locality, to prohibit the sale of intoxicating liquors in that locality by any person, without regard to whether such person, had been licensed by the state, county, city or town to sell. Any other construction of the law would seriously impair its efficacy, and in a great measure defeat the purposes for which it was enacted. * * * we hold, therefore, that the local option law, having been legally adopted in Milam county, it became operative throughout the county, and upon all persons within said county alike, and had the effect to repeal and abrogate all licenses for the sale of intoxicating liquors granted by said county, or by any city or town within, said county.”

Counsel contend that the decisions of the courts of Texas and Kentucky should not be considered by this, court, for the reason that the local option laws of those states were enacted pursuant to constitutional provisions; but we are unable to perceive the difference in effect between a law passed by a legislature because it is compelled to do so, and one passed by a legislature because it has, full power and authority to do so. Each is alike a legislative mandate when duly passed, and each is of equal dignity and importance.

From the foregoing considerations we are of tlie opinion that tlie adoption of tlie local option law in Ravalli county prohibits the sale of intoxicating' liquors in the town of Hamilton. (Smith v. Patton, 103 Ky. 444, 45 S. W. 459 ; 19 Ency. Law (2d Ed.), 510.)

The right to manufacture and traffic in intoxicating liquors is one which is exercised subject to tlie regulation and control of the police power of the' state; a. power of which the legislature cannot divest itself (Burnsides v. Lincoln County Court, 86 Ky. 423, 6 S. AY. 274; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989) ; and such body is the exclusive judge of the manner in. which such police power shall be exercised, and its action should be liberally construed (Garrett v. Mayor, 47 La. Ann. 618, 17 South. 238).

In the early history of this class of legislation a few courts held local option laws unconstitutional. (Rice v. Foster (Del.), 4 Har. 479; Thornton v. Territory, 3 Wash. Ter. 482, 17 Pac. 896; Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425; Parker v. Com., 6 Pa. St. 507, 47 Am. Dec. 480; Maize v. State, 4 Ind. 342; State v. Wier, 33 Iowa, 134, 11 Am. Rep. 115.) A Michigan local option' law was held unconstitutional, hut because of a defective title to tire Act (In re Hauck, 70 Mich. 396, 38 N. W. 269) ; but afterwards, in Feck v. Township Board, 82 Mich. 393, 47 N. W. 37, 10 L. R. A. 69, an Act similar to the one under consideration, in so far as the objections here urged are concerned, was upheld. The case of Ex parte Wall, supra, was decided by a bare majority of the court, as was the case of Thornton v. Territory, supra. Parker v. Com. was overruled in Locke’s Appeal, 72 Pa. St.. 491, 13 Am. Rep. 716, decided in 1873. Maize v. State, above, is overruled in fact, though not in express terms, by the later decision in Groesch v. State, 42 Ind. 547; while the effect of the decision in State v. Forkner, 94 Iowa, 1, 62 N. W. 683, must be held to' have destroyed the effect of the decision in State v. Wier, above, as an authority.

So far as our investigation goes, the only states which now hold such laws invalid are Delaware, California and AAtoshing-ton, while they are upheld by the following authorities: Boyd v. Bryant, 35 Ark. 69, 37 Am. Rep. 6; State v. Wilcox, 42 Conn. 364, 19 Am. Rep. 536; Frederickton v. Queen (Can.), 3 Duv. 505; Territory v. O'Connor, 5 Dak. 397, 41 N. W. 746, 3 L. R. A. 355; Weil v. Calhoun (C. C.), 25 Fed. 865; Caldwell v. Barrett, 73 Ga. 604; State v. Forkner, 91 Iowa, 1, 62 N. W. 683; Com. v. Bean, 110 Mass. 357; Fell v. State, 42 Md. 71, 20 Am. Rep. 83; Feek v. Twp. Board, 82 Mich. 393, 47 N. W. 37, 10 L. R. A. 69; State v. Cooke, 24 Minn. 247, 31 Am. Rep. 344; Schulherr v. Bordeaux, 64 Miss. 59, 8 South. 201; State v. Pond, 93 Mo. 606, 6 S. W. 469; Paul v. Gloucester County, 50 N. J. Law, 585, 15 Atl. 272, 1 L. R. A. 86; Village of Glov-ersville v. Howell, 70 N. Y. 287; Gordon v. State, 46 Ohio St. 607, 23 N. E. 63, 6 L. R. A. 749; Locke’s Appeal, 72 Pa. St. 491, 13 Am. Rep. 716; Ex parte Lynn, 19 Tex. App. 293; Savage v. Commonwealth, 84 Va. 619, 5 S. E. 565; Bancroft v. Dumas, 21 Vt. 456.

Commenting on .these laws, Cooley says: “Such laws are known in common parlance as ‘Local Option Laws.’ They relate to subjects which, like the retaling of intoxicating drinks, or the running a.t large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground that the subject, though not embraced within the ordinary power of the municipalities to 'make by-laws and ordinances, is nevertheless within the class of police regulations, in respect to which it is proper that the local judgment should control.” (Cooley’s Const. Lim. 7th Ed. pp. 173-174.)

Finally, every reasonable intendment is to be resolved in favor of the constitutionality of the law, and 'before this court can pronounce a solemn enactment of the legislative assembly invalid, such invalidity must be made manifest beyond a reasonable doubt. (State v. Camp Sing, 18 Mont. 128, 44 Pac. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551; State v. Clancy, 20 Mont. 498, 52 Pac. 267; State v. McKinney, 29 Mont. 375, 74 Pac. 1095.)

After this canse bad been argued to‘ tbis court at great length, it appeared from tbe testimony of the complainant, taken in open court, that at the time the writ of habeas corpus was served upon the sheriff of Ravalli county complainant was not in fact confined in the county jail, but was permitted h> go about without apparent restraint. IJpon this testimony of complainant this court would have been justified in dismissing his petition, but because of the importance of the questions and the public interest involved we have considered it upon its merits.

The complainant is remanded to the custody of the sheriff of Ravalli county to be imprisoned until he shall be discharged .according to law, and the proceedings are dismissed.

Dismissed.